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[2016] ZALAC 19
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Metsimaholo Local Municipality v South African Municipal Workers Union and Others (JA123/2014) [2016] ZALAC 19 (11 May 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JA123/2014
In the matter between:-
METSIMAHOLO LOCAL
MUNICIPALITY
Appellant
and
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
First
Respondent
THE PERSONS MENTIONED
IN ANNEXURE “A”
Second Respondent
Heard
:
12
November 2015
Delivered
:
11
May 2016
Summary
:
Employees
embarking on strike in relation to issues which had already been
mediated – employer obtaining interim order interdicting
strike
–Labour Court, on the return date, discharging interim order –
Appeal – strike notice defective due to
vagueness of the
commencement of the strike – strike notice a procedural
requirement. Strike unlawful for lack of proper
notice – Labour
Court erring in not confirming the rule
nisi.
Appeal upheld – Labour Court’s judgment substituted with
an order to the effect that the rule
nisi
is confirmed.
Coram:
Tlaletsi DJP, C J Musi JA e
t
Makgoka AJA
JUDGMENT
CJ MUSI JA
[1] This is an appeal,
with the leave of the court
a quo,
against the judgment of the
Labour Court (Sono AJ) wherein it discharged a rule
nisi
with
no order as to costs.
[2]
The respondents referred two disputes to the South African Local
Government Bargaining Council (the Bargaining Council). The
first
dispute related to the appellant’s alleged refusal to implement
resolutions of the Local Labour Forum (LLF) with regard
to salary
disparities and the group scheme. The second dispute related to the
interpretation and application of a collective agreement.
Both
disputes could not be resolved and the Bargaining Council issued
certificates of non-resolution in respect of both disputes
on 17
March 2014.
[1]
[3] The parties agreed to
endeavour to resolve their disputes through mediation.
Commissioner Mohlala was appointed by the
parties to mediate the
disputes between them. Mohlala facilitated the process and issued a
report on 23 March 2014. In terms of
the report, agreement was
reached in respect of all issues in dispute. The report concludes as
follows:
‘
At the
conclusion of the mediation session it was agreed that SAMWU will not
exercise its right to strike or the municipality its
recourse to lock
out in the event of non-fulfilment of any part of this agreement.
Further mediation session(s) shall be
convened to attempt to break
any deadlock arising before or after 30 June 2014 on any of the
issues for which the parties have
agreed on a process to resolve
(sic).
This agreement, therefore, suspends
the right of SAMWU to embark on a strike action on the issues covered
under this agreement and
the municipality’s recourse to
lock-out only until 30 June 2014.’
[4] The issues covered
under the agreement were the pay disparity, group scheme and the
interpretation of the collective agreement.
On 13 June 2014, while
the appellant thought that the issues were resolved through the
mediation process, the first respondent
(SAMWU) served a strike
notice on the appellant. The said strike notice reads as follows:
‘
Notice to
engage in an industrial action (sic)
The matter cited above bear’s
reference (sic):
This communiqué serves to
notify you that SAMWU will be embarking in an industrial action as
from 17 June 2014 (sic).
Take note that employer have been
notified about this action in the last paragraph of the letter sent
to the office of the Executive
Mayor dated 22 May 2014 (sic).
This action is informed amongst others by failure by the employer to
implement what was agreed
upon in the private mediation that was held
on the19 – 20 March 2014 (sic)…’
[5] In the letter of 22
May 2014, SAMWU complained about the failure by the appellant to
implement the LLF’s resolutions,
the unfair dismissal of Mr
Makua and 91 other employees, the unilateral change of the
recruitment and selection policy, health
and safety issues, insurance
and funeral scheme pay-out, misuse of council funds, outsourcing of
municipal services, failure to
appoint employees after interviews
were conducted, the disregard for arbitration awards and the
unnecessary review applications.
The letter ends as follows:
‘
We therefore
seek your urgent political intervention on the above said matters as
we have no choice but to revoke the mediation
agreement and use our
certificates that allows us to go on strike (sic). Probably an
urgent meeting with you and your committee
might possibly assist in
this regard, as 30 May will be our final date in meeting you. (sic)’
[6] The respondents
commenced with the industrial action on 17 June 2014. The appellant
issued an ultimatum wherein it pointed out
that the strike was
unprotected and requested all the striking employees to report to
their immediate supervisors. The first respondent’s
offices
(Provincial and National) were also informed about the unlawfulness
of the industrial action. Meetings were held between
the appellant
and shop stewards of SAMWU in order to attempt to resolve the dispute
to no avail. The strike continued and the appellant
approached the
Labour Court, on an urgent basis, for an interdict.
[7] The urgent
application served before Tlhotlhalemaje AJ. On 27 June 2014, after
the respondents had filed an answering affidavit
and the matter fully
argued before him, he issued a rule
nisi
returnable on 9
October 2014 to the effect that the strike was unlawful and
unprotected. The respondents were also interdicted
from promoting,
inciting or instigating or participating in the unlawful strike. They
were further,
inter alia
, interdicted against assault and
damaging of property.
[8] Tlhotlhalemaje AJ
further ordered that:
‘
Unless and
until the respondents comply with the provisions of section 64 and 65
of the Act, any further strike embarked upon by
them will constitute
a strike that is prohibited in terms of the said sections.’
[9] On 6 October 2014,
the respondents filed a supplementary affidavit wherein they
essentially set out what transpired after the
rule
nisi
was
issued. On 9 October 2014, the matter was before Sono AJ and the
appellant objected to the supplementary affidavit being received
as
evidence because it was irrelevant. Sono AJ found that the
supplementary affidavit raised crucial issues which were, in her
view, determinative of the matter. She put it thus:
‘
As already
stated, the affidavit raised crucial issues which may be dispositive
of the matter. It is for this reason that the applicant
(appellant)
should have filed a response. The applicant however elected not to do
so but to approach the court with an argument
that the contents of
the affidavit are irrelevant. I do not agree with this contention.
These issues relate to the question whether
the applicant has a clear
right to the relief sought. Put differently, the supplementary
affidavit deals with the question whether
good cause has been shown
as to whether or not the strike action should be interdicted.’
[10] I have serious doubt
as to whether the approach followed by the court
a quo
and its
reasons for admitting the supplementary affidavit are correct. I say
this because the respondents filed an answering affidavit
and it was
in that affidavit that they were supposed to show that the rule
nisi
ought not to be granted because,
inter alia
, the appellant had
not shown that it had a
prima facie
or clear right. The
supplementary affidavit dealt with facts that occurred after the
rule
nisi
was granted. The appellant’s attitude in the court
a
quo
and in this Court was that even if the contents of the
supplementary affidavit were considered as relevant evidence, the
rule nisi
should still have been confirmed. I will adjudicate
this matter on the assumption that the supplementary affidavit was
admissible.
[11] In the supplementary
affidavit, the respondents testified that they adhered to the rule
nisi
from 30 June 2014 (which was the first working day after
27 June 2014) to 9 July 2014.
[12] On 1 July 2014, they
gave notice to the appellant that they would commence with industrial
action from 10 July 2014. The notice
reads as follows:
‘
Notice to
engage in an Industrial Action (sic).
The matter cited above bear’s
reference (sic). This communiqué serves to notify you
that SAMWU will be embarking
in an industrial action at any point
from 10 July 2014 onwards (sic). Hope you will find the above
in order.’
[13] On 2 July 2014, the
appellant wrote to all its employees informing them that it had come
to its attention that some of its
employees were participating in
unlawful industrial action in the form of a go-slow. The employees
were informed that such industrial
action was unlawful and in breach
of the court order of 27 June 2014.
[14] On 4 July 2014, the
appellant wrote a final notice to all SAMWU’s members who were
still embarking on unlawful industrial
action, and requested them to
return to work and resume their duties. They were also warned that
from 7 July 2014, the appellant
would start to issue all employees
who were still engaged in or continuing with the unlawful strike,
with dismissal notices.
[15] SAMWU requested to
meet with its members on 7 July 2014 but denied that its members were
participating in an unlawful strike.
Permission was granted and SAMWU
met with its members who persisted with their denial.
[16] On 10 July 2014,
SAMWU’s members commenced with strike action in accordance with
the notice of 1 July 2014.
[17] The court
a quo
found that the strike notice of 1 July 2014 was in compliance with
the rule
nisi
and
section 64(1)(d)
of the
Labour Relations Act
66 of 1995
. The court
a quo
further found that the industrial
action which commenced on 17 June 2014 came to an end and there was
therefore no strike to interdict.
According to the court
a quo
,
the strike which commenced on 10 July 2014 was a new strike and not
the subject matter of the rule
nisi
. The rule
nisi
could therefore not be confirmed.
[18] The court
a quo
found that the strike notice of 1 July 2014 cured the defect in the
strike notice of 13 June 2014, therefore the respondents could
lawfully engage in industrial action, because there was no court
order against the strike which commenced on 10 July 2014. The
appellant submitted, in the court
a quo
, that the disputes
that formed the subject matter of the strike that commenced on 10
July 2014 were not referred for conciliation.
The court
a quo
rejected that argument and inexplicably found that because two
certificates of non-resolution were issued on 17 March 2014,
therefore,
the respondents could embark on a lawful strike.
[19] The appellant raised
numerous grounds of appeal. In its heads of argument, which were
drafted by Mr Brassey, it confined itself
to a single ground of
appeal. It contended that the purported strike notice of 1 July 2014
was fatally defective in that it had
not informed the appellant when
the respondents would commence with the proposed strike. Mr Marcus
who appeared, before us, on
behalf of the appellant, however
contended that the supplementary affidavit should not have been
admitted in evidence and that
the matter should have been adjudicated
on the founding and answering affidavits only, because the appellant
did not file a replying
affidavit. If it was necessary to decide this
point, I would probably have decided it in Mr Marcus’ favour,
but based on
the assumption alluded to above, I do not have to decide
this point.
[20] The respondents
defended the court
a quo
’s order and contended that the
issue was moot because the respondents commenced with a new strike on
10 July 2014 and the
lawfulness of the July strike is irrelevant to
decide whether the rule should be confirmed. The fact of the matter
being that the
June strike had run its course. They also contended
that the strike notice issued by the respondents was clear in that it
notified
the appellant that the strike would commence on 10 July 2014
or any date thereafter.
[21] Section 64 and 65 of
the Labour Relations Act 66 of 1995 (“the Act”) read as
follows:
‘
64 Right
to strike and recourse to lock-out
(1) Every employee
has the right to strike and every employer has recourse to lock-out
if-
(a) the issue
in dispute has been referred to a council or to the Commission as
required by this Act, and-
(i) a certificate
stating that the dispute remains unresolved has been issued; or
(ii) a period of 30 days,
or any extension of that period agreed to between the parties to the
dispute, has elapsed
since the referral was received by the council
or the Commission; and after that-
(b) in the
case of a proposed strike, at least 48 hours' notice of the
commencement of the strike, in writing,
has been given to the
employer, unless-
(i) the issue in
dispute relates to a collective agreement to be concluded in a
council, in which case, notice
must have been given to that council;
or
(ii) the employer is a
member of an employers' organisation that is a party to the dispute,
in which case, notice must
have been given to that employers'
organisation; or
(c) in the
case of a proposed lock-out, at least 48 hours' notice of the
commencement of the lock-out, in
writing, has been given to any trade
union that is a party to the dispute, or, if there is no such trade
union, to the employees,
unless the issue in dispute relates to a
collective agreement to be concluded in a council, in which case,
notice must have been
given to that council; or
(d) in the
case of a proposed strike or lock-out where the State is the
employer, at least seven days' notice
of the commencement of the
strike or lock-out has been given to the parties contemplated in
paragraphs (b) and (c).
65 Limitations on right to strike
or recourse to lock-out
(1) No person
may take part in a strike or a lock-out or in any conduct in
contemplation or furtherance
of a strike or a lock-out if-
(a) that
person is bound by a collective agreement that prohibits a strike or
lock-out in respect of the
issue in dispute;
(b) that person is
bound by an agreement that requires the issue in dispute to be
referred to arbitration;
(c) the issue
in dispute is one that a party has the right to refer to arbitration
or to the Labour Court
in terms of this Act or any other employment
law;
(d) that
person is engaged in-
(i) an
essential service; or
(ii) a
maintenance service.12
(2) (a)
Despite section 65 (1) (c), a person may take part in a strike or a
lock-out or in any conduct
in contemplation or in furtherance of a
strike or lock-out if the issue in dispute is about any matter dealt
with in sections 12
to 15.13
(b) If the
registered trade union has given notice of the proposed strike in
terms of section 64 (1) in respect
of an issue in dispute referred to
in paragraph (a), it may not exercise the right to refer the dispute
to arbitration in terms
of section 21 for a period of 12 months from
the date of the notice.
(3) Subject to a
collective agreement, no person may take part in a strike or a
lock-out or in any conduct in
contemplation or furtherance of a
strike or lock-out-
(a) if that
person is bound by-
(i) any
arbitration award or collective agreement that regulates the issue in
dispute; or
(ii) any
determination made in terms of section 44 by the Minister that
regulates the issue in dispute;
or
(b) any
determination made in terms of Chapter Eight of the Basic Conditions
of Employment Act and that
regulates the issue in dispute, during the
first year of that determination.’
[22] Tlhotlhalemaje AJ
found that the respondents were obliged to give seven days’
notice of their intention to strike as
contemplated in section
64(1)(d) of the Act. The exceptions in section 64(3) of the Act do
not find application in this case. Secondly,
by virtue of
non-compliance with the provisions of section 64(1)(d) of the Act, it
follows that the strike action embarked upon
by the respondents was
unlawful and unprotected, and the question as to whether the issues
in dispute were resolved or not became
moot for the purposes of that
application.
[23] I find it quite
strange that Tlhotlhalemaje AJ issued a rule
nisi
when it was
clear that final relief ought to have been given. A rule
nisi
should only be granted as interim relief pending the institution of
judicial proceedings or because the other side has not been
given
proper opportunity to challenge the allegations in the application
for a rule
nisi
.
[24] In this matter, the
respondents filed an answering affidavit and all the issues were
properly ventilated before Thlotlhalemaje
AJ. He should have granted
final relief.
[25] When the matter was
before Sono AJ, it ought to have been clear that at the time that the
rule
nisi
was granted, the appellant was entitled to final
relief. Sono AJ should therefore have confirmed the rule
nisi
on the basis that the strike was unprotected for lack of a proper
strike notice. The issues that occurred subsequent to the rule
nisi
being granted were therefore irrelevant for the determination of the
fate of the rule
nisi
.
[26] The supplementary
affidavit clearly shows that the respondents still embarked on the
unlawful strike even after the rule
nisi
was granted. The
ultimatum issued by the appellant on 2 July 2014 and 4 July 2014
would otherwise not have been issued if normality
was restored by the
rule
nisi
.
[27]
Did the notice of 1 July 2014 cure the defect in the notice of 13
June 2014? A strike notice is a procedural requirement for
the
exercise of the right to strike.
[2]
In
Equity
Aviation Services (Pty) Ltd v SATAWU and Others,
it was said that:
‘
The purpose
of the strike notice is elaborated on by Helen Ready and Clive
Thompson in their chapter on strikes and lock-outs in
Clive Thompson
and Paul Benjamin
South
African Labour Law
as four-fold. First, the notice tells the employer that words are
about to escalate into deeds, which they term ‘settlement
brinkmanship’. Second, it leads to more orderly industrial
action: the employer is given the opportunity to regulate what
is
inherently volatile – to agree or impose picket rules, for
example. Third, it allows for ‘damage limitation’.
Strikes are intended to cause financial loss, but the notice can
prevent unnecessary loss – where an employer works with
perishable goods for example, it can take steps to protect them.
And fourth, ‘health and safety considerations’,
in some
cases an orderly slowdown of production might prevent or reduce
health and safety risks to everyone in the workplace and
to public.
I would add that the requirement of a strike notice has an additional
purpose: to protect employees. If
they issue a strike notice in
proper terms they are protected under the Act: their conduct is
lawful.
’
[3]
[28]
In
Ceramic
Industries Ltd t/a Betta Sanitaryware and Another v NCBAWU and
Others
[4]
it was said that:
‘
The specific
purpose of warning employers of a proposed strike may have at least
two consequences for the employer. The employer
may either decide to
prevent the intended power play by giving in to the employee demands,
or, may take other steps to protect
the business when the strike
starts. For the former the notice in the present case might
suffice, … for the latter
however, the notice is deficient,
because the employer does not know when, after 48 hours the proposed
strike will commence.’
[5]
[29] In
Ceramic
Industries Ltd t/a Betta Sanitaryware
, the manner in which
section 64(1)(b) should be approached was stated as follows:
‘
The language
and purpose of section 64(1)(b) require that a specific time for the
commencement of the proposed strike be set out
in the written
notice. The legislature was anxious that attention be paid to
the “
commencement”
of the strike. The use of an exact time expressed in hours as a
minimum of the notice to be given seems to indicate that
the longer
period envisaged by the phrase “
at
least”
should also be expressed in an exact manner. The manner in
which the time of the commencement of strike is expressed may,
however, differ depending on the nature of the employer’s
business. Strikes can occur which involve the whole workforce
and others which merely involve one or more shifts. In a shift
system notice of the exact time of the proposed strike in
respect of
particular shifts may be necessary.’
[6]
[30] The strike notice in
this matter, in as far as it does not indicate when exactly or on
which day the strike would commence,
is defective. How can an
employer be expected to take steps to prepare for the eventuality of
a strike when it is notified that
the strike would commence “at
any point from 10 July 2014 onwards”. At any point from 10 July
2014 onwards means that
the strike could commence on any day from the
10
th
of July 2014. This notice could therefore not cure
the first notice. The court
a quo
’s finding to the
contrary is therefore wrong.
[31] The contention of
the respondents that the whole matter is moot is without merit for
the simple reason that there are unfair
dismissal disputes pending,
which dismissals were as a result of the strike action. The question
whether the strike was protected
or not would therefore feature
prominently during those proceedings. There is no reason in law or
fairness why a costs order should
be made in this matter.
[32] I therefore make the
following order:
a)
The
appeal is upheld with no order as to costs.
b)
The
order of the court
a
quo
is set aside and replaced with the following:
The
rule
nisi
is confirmed.
______________
C J Musi JA
Tlaletsi DJP and Makgoka
AJA concur in the judgment of C J Musi JA.
APPEARANCES:
FOR THE APPELLANT:
Adv. M H Marcus
Instructed by Lebea &
Associates Johannesburg
FOR THE FIRST
RESPONDENT: Adv. G L
van der Westhuizen
Instructed by Maenetja
Attorneys Pretoria
[1]
The respective
certificates of outcome were issued under case number FSD021410 and
FS021411.
[2]
See
Equity
Aviation Services (Pty) Ltd v SATAWU and Others
[2012]
3 BLLR 245
(SCA) at para 26
(Equity
Aviation Services).
[3]
At para 15.
[4]
[1997] 6 BLLR 697
(LAC).
[5]
At page 702B-C.
[6]
At page 702D-F.